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2005 DIGILAW 380 (PNJ)

Bharat Bhushan v. Madhu

2005-03-15

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. Bharat Bhushan has filed this appeal to challenge the order dated 8.11.2004 passed by the Guardian Judge, Jalandhar, whereby the custody of the minor female child has been ordered to be given to Smt. Madhu wife of the appellant. 2. The marriage between Bharat Bhushan appellant and Smt. Madhu respondent, which took place on 28.5.2001, proved to be tumultuous from the very beginning. However, out of the wedlock a female child was born on 5.5.2002. Smt. Madhu left her matrimonial home on 21.7.2002 without taking the child with her. Thus, the child though only 2-1/2 months old, remained at her paternal house in Jalandhar. According to the appellant, the child was herself abandoned by the wife while leaving the matrimonial home. On the other hand, the version of the respondent-wife is that the child was forcibly kept by the husband and other family members against her wishes. The wife filed a petition under Section 25 of the Guardian & Wards Act for taking custody of the child on 2.5.2003. Prior to that a complaint was also filed by her with the police on 10.4.2003, which was followed by a rapprochement between the parties on 9.5.2003 and the wife rejoined the company of her husband at, the matrimonial home. Immediately thereafter, a dispute again arose between them and she parted company of her husband Bharat Bhushan and again started living at her parental home. The child again remained in the custody of the appellant. However, the wife filed an application under Section 12 of the Guardian and Wards Act for a direction to the husband (appellant herein) for handing over the custody of the child to her. The Guardian Court vide order dated 21.1.2004 (Annexure R-1) allowed the application and ordered the husband to hand over the custody of the minor child, namely Gaud alias Sarah, to the wife within a period of 15 days. The said order of the Guardian Court remained uncomplied with. Thereafter, the wife filed another application seeking liberty to keep the minor child with her on weekends and also during summer vacation as an interim measure. The said application filed by the wife was also allowed by the Guardian Court vide order dated 12.6.2004 (Annexure R2). The said order of the Guardian Court remained uncomplied with. Thereafter, the wife filed another application seeking liberty to keep the minor child with her on weekends and also during summer vacation as an interim measure. The said application filed by the wife was also allowed by the Guardian Court vide order dated 12.6.2004 (Annexure R2). Ultimately, the petition under Section 25 of the Guardian and Wards Act filed by Smt. Madhu (respondent herein) was also allowed by the Guardian Court, Jalandhar, vide order dated 8.11.2004 vide which the husband Bharat Bhushan (appellant herein) has been directed to hand over the custody of the child to her mother Smt. Madhu within one month. However, the appellant was allowed liberty to meet the child thrice in a month at a venue to be mutually decided by the parties. It is against this order passed by the Guardian Court that the present appeal has been filed by the husband Bharat Bhushan. 3. It has been contended by Mr. R.C. Setia, learned Senior Advocate, that the child is being looked after in a very cordial atmosphere by the appellant and his other family members. It is only with a view to harass the appellant that the respondent filed a petition under Section 25 of the Guardian and Wards Act on 2.5.2003. It has further been contended that the wife had herself deserted the child. She had allegedly thrown the child. However, the child was luckily saved by the sister of the appellant from falling on the ground. It has been averred that the child is accustomed to the family atmosphere in the house of the appellant. The counsel contends that the conduct of the respondent-wife was such from the very beginning that she did not deserve to have the custody of the child. The counsel contends that the father, mother and sister of the appellant have developed so much love and affection for the child that it would now be difficult for them to live without the child and they are very much in a position to look after the child nicely. It has further been contended that the child has also developed great love and affection for them and it is also difficult for the child to live without them. The child has learnt to live without its mother as she did not care for the child from the very beginning. It has further been contended that the child has also developed great love and affection for them and it is also difficult for the child to live without them. The child has learnt to live without its mother as she did not care for the child from the very beginning. Moreover, she herself had abandoned the child at the house of the appellant when she left her matrimonial home. 4. The contentions raised by Mr. Setia have been controverted by Mr. J.S. Bhatti, learned counsel appearing for the respondent-wife. 5. After hearing the learned counsel for the parties and on going through the case file, I do not find any merit in the contentions raised by Mr. R.C. Setia, learned counsel for the appellant. 6. The following facts, which weighed with the Guardian Court while passing the impugned order and which also go unrebutted cannot be easily overlooked:- 1. The respondent-wife is well qualified as she is M.Sc., B.Ed. and is permanently employed in a Government aided School and is drawing salary equivalent to a Government School teacher. 2. The parents of the appellant are old and are not keeping good health. The mother of the appellant is statedly a chronic patient of arthritis. It has also come in evidence that she moves with the help of a wheel chair. 3. The unmarried sister of the appellant, who is statedly above 36 years of age, is employed in the Social Welfare Department and is posted in a far-off village. Her office times are 9 a.m. to 5 p.m. She also consumes sufficient time to and fro. There is also every possibility that she may get married one day and in such an eventuality the child would virtually be left without female protection, which is very much essential for the development of a female child. 4. There cannot be two opinions that mother is always in a better position to look after and cater to the biological needs of a female child. 5. At present the child is below three years of age, Law also requires that the child should be kept in the custody of the mother at this stage of the age. 7. In the case reported as Anita Krishna Kumar Kachba v. Krishana Kumar Ramachandra Kachba, A.I.R. 2003 Bomb. 5. At present the child is below three years of age, Law also requires that the child should be kept in the custody of the mother at this stage of the age. 7. In the case reported as Anita Krishna Kumar Kachba v. Krishana Kumar Ramachandra Kachba, A.I.R. 2003 Bomb. 273 : 2003(3) H.L.R. 800, it has been held by their Lordships of a Division Bench of the Bombay High Court that in the formative years it is the mother who can look after the physical, biological, psychological, mental, spiritual or ethical growth of a child. Similarly, in Chethana Ramateertha v. Kumar v. Jagirdar, 2003(2) H.L.R. 340, it has been held that the company of the mother is most natural thing for a child and that is what nature has evolved over a period of generations. So long as mother does not suffer any disqualification, she does not disentitle herself to bring up her child, neither father nor any other person can endow the same kind of love and affection, care and sympathies to a child that a mother can. As already mentioned above, in the present case, the respondent-wife, who is employed as a teacher and is highly qualified as she has done M.Sc., B.Ed., is in a better position to take care of the child as compared to the circumstances prevailing in the house of the appellant (husband), whose parents are old, infirm and sick. His unmarried sister is not in a position to take care of the child as she herself is employed at a far-off village. Thus, I do not find any infirmity in the well-reasoned order dated 8.11.2004 passed by the Guardian Court and I uphold the same. 8. In view of the above, I do not find any merit in this appeal. It is, accordingly, dismissed. The appellant is directed to hand over the custody of the child to the respondent Smt. Madhu within one month from today. However, it will be the duty of the respondent-wife to allow the appellant to meet the child ad least thrice a month at a venue to be mutually decided by the parties. The interim order of stay dated 17.12.2004 passed by this Court stands vacated. There shall, however, be no order as to costs.